Military Medical Malpractice

Active Duty Members Can Now File Claims for Military Medical Malpractice

If military medical malpractice has caused injury or death to you or a loved who was/is on active duty, a new law permits you to file a claim for damages caused by that malpractice.

How Does the Military Medical Malpractice Law Work?

Athough medical malpractice occurs just as often in our military hospitals as it does elsewhere, prior to June 2021, a law called the Feres Doctrine prevented Servicemembers on active duty from filing any type of claim for compensation for these types of injuries. However, Congress recently passed a law permitting active duty servicemembers to file a claim with the Department of Defense for these types of injuries. It is important to note that these claims are not “lawsuits.” You will not be required to endure the enormous delay and oft-times emotional cost of suing.  Instead, it’s a claim process, much like a household goods claim process. You submit a package showing the injuries and justification for the damages you believe you should receive, and your claim is reviewed by a panel appointed by the Department of Defense.  If they approve your claim, they will pay you directly (a substantiated claim under $100,000 will be paid directly to the member or his/her estate by DoD but claims higher than that are reviewed and paid by the Treasury Department.

How Long Do I Have to File a Claim?

Active duty Servicemembers must file your claim within two years after the claim accrues.

What Types of Claims Are Payable?

Basically, any injury or death that was the result of military medical malpractice in a Military Hospital. Military medical malpractice that occurs on a ship, in the field, in deployed environments, etc. would not qualify (military hospitals overseas DO qualify). Additionally, only claims that would be covered by other US Government plans (e.g. military medical retirement, VA disability, etc.) are not covered. You may seek damages for “non-economic” reasons such as past and future conscious pain and suffering, physical disfigurement, and loss of enjoyment of life.

How Do I File a Claim?

First, GET AN EXPERIENCED MILITARY ATTORNEY to help! The claim process can be complex, especially the requirement that you “prove” malpractice. An experienced military attorney can collect the necessary medical records, ensure that your claim is thoroughly researched, all damages are accounted for and “monetized” (meaning calculated for the maximum amount of compensation available), and that your malpractice claim is supported by solid evidence and medical opinions. Calculation of economic damages, which are one component of a potential damages award, is the subject of § 45.9. Elements of economic damages in personal injury claims are past expenses, including medical, hospital and related expenses actually incurred, and future medical expenses. Also covered are lost earnings, loss of earning capacity, and compensation paid to a person for essential household services and activities of daily living that the member can no longer provide for himself or herself.

What if My Claim is Denied

If your initial claim is denied, you can appeal.  In that appeal, you need to explain why you disagree with the denial but may not submit additional information in support of the claim unless requested to do so by DoD. You only have 60 days from the date of your initial claim decision to appeal so there is little time to waste. Appeals are decided by an Appeals Board of not fewer than three and no more than five DoD officials designated by the Defense Health Agency from the Defense Health Agency and/or the Military Departments who are experienced in medical malpractice claims adjudication. The Appeals Board decision is final.  You may seek further appeals in federal court.

At King Military Law, We’re Here to Help

We have relationships with nearly every kind of medical professional, from mental health to OBGYN, to Surgeons, all of whom are ready to provide a consultation to help determine the likelihood of a successful claim. Whether you need to appeal a claim, you’re ready to file a claim, or you are just thinking about it and have a few questions—we’d be honored to help.  We’re a veteran owned law firm with over thirty years of military legal experience.  Call us today for a free consultation.

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